Should a driver have the legal ability to flash their head lights as an alert to a police presence on the road? That knotty legal question is gaining momentum after a legal decision in Missouri, an Oregon ruling, and a new effort in New Jersey.

New Jersey Assemblyman Ronald S. Dancer introduced a bill in March that would make the use of flashing high-beams at motorists legal under state law.

Proponents of the measure are citing a legal victory for the pro-high beam crowd in a federal court in Missouri from February, which was reaffirmed last week.

U.S. District Judge Henry E. Autrey had issued a preliminary injunction in February prohibiting the town of Ellisville from prosecuting drivers who allegedly flashed their vehicles’ head lights to warn of radar and speed traps. The city didn’t appeal the decision.

Last week, Judge Autrey expanded that decision to a permanent injunction.

The American Civil Liberties Union championed the case of Elli v. Ellisville. Last April, the ACLU of Missouri sued on behalf of Michael Elli, who was pulled over in 2012 by a police officer and issued a citation for flashing lights to warn of radar use ahead. Elli faced a $1,000 fine for flashing the lights.

“Expressive conduct is protected whenever a particular message is present and the likelihood is great that the message would be understood by those who viewed it,” said Tony Rothert, legal director of the ACLU of Missouri in a statement issued about the case. “Even new drivers understand that an oncoming car with flashing headlights means they should either slow down, turn on their headlights, or otherwise use caution.”

The Asbury Park Press reported on the New Jersey story on Tuesday and it interviewed attorneys familiar with the proposal. They seemed to agree on the constitutional point but were skeptical if a New Jersey motorist would mount a constitutional challenge to protest a $54 fine.

But it did bring up a case from the 1990s where a motorist went to court and won a verdict that threw out a fine for illegal headlight flashing. However, that court’s decision wasn’t binding or applicable to other cases.

And there have been other instances where head light flashers have won in court.

Last week, an Oregon man, Chris Hill, fought a $260 ticket for improperly using his head lights while driving a truck full of logs. Hill won his legal fight, and Hill acted as his own attorney in the proceeding.

“The citation was clearly given to punish the Defendant for that expression,” the judge said in the case. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”

In May 2012, Ryan Kintner from Lake Mary, Florida, successfully fought a citation for violating a state traffic law by using head lights as a warning signal. The judge said the flashing was protected under the First Amendment.

“I felt an injustice was being done. … I have nothing against officers … keeping speeding down, but when you cross a line and get into free speech, I feel it’s gone too far,” Kintner told the Orlando Sentinel during the lawsuit.

Back in New Jersey, the Newark Star-Ledger’s editorial board has endorsed Dancer’s measure, in opposition to the New Jersey Police Chiefs Association.

“At its core, this is a free speech issue,” the board said. “Police can’t prevent you from stopping at every gas station to sound the alarm about a speed radar, or starting your own blog about the locations of hidden cruisers. Look — it exists already on Twitter. They shouldn’t be able to prevent an altruistic citizen from flicking headlights, either.”

The importance of the free speech issue isn’t likely to go way, as people facing relatively small fines are willing to take their cases to court.

As we profiled last month, a Pennsylvania man spent thousands of dollars in legal costs to protest a $150 fine for evading questions asked to him by a game warden. He won a legal victory over his Fifth Amendment rights, which apparently conflicted with a Pennsylvania deer hunting statute.

Scott Bomboy is the editor in chief of the National Constitution Center.

You are right, excellent read!-- Though I would quibble about the point at the end about judicial activism/imperialism-- which properly defined is when judges substitute their personal politics (usually progressive) for the law.

Didn't he vote against OBAMA CARE. How come THAT is not mentioned. Only the darn liberal issues are even mentioned:

*****Justice Stevens: Make 6 changes to Constitution

Associated Press By MARK SHERMAN 10 hours ago

FILE - In this May 30, 2012, file photo, former U.S. Supreme Court Justice John Paul Stevens speaks at a lecture presented by the Clinton School of Public Service in Little Rock, Ark. In the aftermath of the Connecticut school shootings that left 20 first-graders and six educators dead, retired Supreme Court Justice John Paul Stevens began thinking about ways to prevent a repeat. The result is Stevens' new book, his second since retiring from the court at age 90, in which he calls for no fewer than six changes to the Constitution, of which two are directly related to guns. (AP Photo/Danny Johnston, File)

In this May 30, 2012, file photo, former U.S. Supreme Court Justice John Paul Stevens speaks at a lecture presented by the Clinton School of Public Service in Little Rock, Ark. In the aftermath of the Connecticut school shootings that left 20 first-graders and six educators dead, retired Supreme Court Justice John Paul Stevens began thinking about ways to prevent a repeat. The result is Stevens' new book, his second since retiring from the court at age 90, in which he calls for no fewer than six changes to the Constitution, of which two are directly related to guns. (AP Photo/Danny Johnston, File)

WASHINGTON (AP) — In the aftermath of the Connecticut school shootings that left 20 first-graders and six educators dead, retired Supreme Court Justice John Paul Stevens began thinking about ways to prevent a repeat.

The result is Stevens' new book — his second since retiring from the court at age 90 — in which he calls for no fewer than six changes to the Constitution, of which two are directly related to guns. Others would abolish the death penalty, make it easier to limit spending on elections and rein in partisan drawing of electoral districts.

His proposed amendments generally would overrule major Supreme Court decisions with which he disagrees, including ones on guns and campaign finance in which he dissented.

The book, "Six Amendments: How and Why We Should Change the Constitution," is being published Tuesday by Little, Brown and Co., two days after Stevens' 94th birthday.

Stevens said in an interview with The Associated Press that the Newtown, Conn., shootings in December 2012 made him think about doing "whatever we could to prevent such a thing from happening again."

He said he was bothered by press reports about gaps in the federal government database for checking the background of prospective gun buyers. Those gaps exist because the Supreme Court ruled in 1997 that states could not be forced to participate in the background check system. Stevens dissented from the court's 5-4 ruling in Printz v. United States.

One amendment would allow Congress to force state participation in gun checks, while a second would change the Second Amendment to permit gun control. Stevens was on the losing end of another 5-4 decision in 2008 in District of Columbia v. Heller, in which the court declared for the first time that Americans have a right to own a gun for self-defense.

He acknowledged that his proposed change would allow Congress to do something unthinkable in today's environment: ban gun ownership altogether.

"I'd think the chance of changing the Second Amendment is pretty remote," Stevens said. "The purpose is to cause further reflection over a period of time because it seems to me with ample time and ample reflection, people in the United States would come to the same conclusion that people in other countries have."

Justices often say that their dissenting opinions are written with the hope that today's dissent might attract a majority on some future court.

But Stevens has gone a step beyond by proposing the constitutional changes. Asked whether the book could in part be seen as "sour grapes," he readily agreed.

"To a certain extent, it's no doubt true, because I do think the court made some serious mistakes, as I did point out in my dissents," he said. "But I've been criticized for making speeches since I retired. Writing the book is not much different from continuing to speak about things I find interesting."

A recent example is the court's decision, again by a 5-4 vote, to strike down limits in federal law on the total contributions wealthy individuals can make to candidates for Congress and president, political parties and political action committees. Stevens said the decision follows from the 2010 ruling in Citizens United that lifted limits on political spending by corporations and labor unions. Again, he was in the dissent in another 5-4 ruling.

Those cases, he said, talk about the importance of public participation in the electoral process. But this month's decision on the overall limits is "not about electing your representative," Stevens said. "It's about financing the election of representatives of other people. It's about the influence of out-of-state voters on the election in your district. It sort of exposes a basic flaw in the recent cases."

Stevens marked his 94th birthday Sunday, still in excellent health, but lately feeling his age. Speaking to AP a few days before his birthday, he said, "It's going to come and pass. I'm not sure it's something to celebrate."*****

"... while the first and second branches of the federal government have fallen into quiescence, it’s springtime at the third branch and its justices are delivering decisions on big, controversial issues such as campaign finance and affirmative action. By the end of June, the justices will rule on the constitutionality of Obama- Care’s birth-control mandate."

The U.S. Supreme Court provides one of the more ironic dynamics in politics: people calling for the retirement of justices with whom they agree. Pressure to retire has been directed at Ruth Bader Ginsburg and Stephen Breyer by some who fear that the 81- and 75-year-old justices will not survive a potential Republican presidency that begins in 2017. Some want Ginsburg and Breyer to retire before the end of Barack Obama’s second term, or possibly even sooner, in case Democrats lose control of the Senate in the midterm election. But the behavior of past justices indicates that this pressure may be for naught. Justices rarely hasten their retirement.

Senator Rand Paul plans a filibuster Wednesday against judicial nominee David Barron for writing secret memos supporting the legality of using a drone to kill terrorist Anwar al-Awlaki. That's a reason to support Mr. Barron in our view, though there are other reasons to defeat his nomination.

As head of the Justice Department's Office of Legal Counsel, Mr. Barron wrote at least two memos that provided the legal basis for the 2011 killing of Awlaki, who was a U.S. citizen. Mr. Paul first demanded to see the classified memos, which he now has, but he and Democrat Mark Udall still want to filibuster until those memos are released publicly.

It's tempting to hoist Mr. Barron and President Obama on their own spears here. In a 2006 interview on National Public Radio, Mr. Barron roundly denounced the secret memos written by Bush Administration lawyer John Yoo in support of aggressive interrogation of terrorists. He said lawyers like Mr. Yoo would "have to expect that they're going to be raising questions about whether they are authorizing war crimes." Now Mr. Paul is giving him the same business.

But it's a bad business. Using drones in wartime against enemy combatants who have declared war against America, no matter their citizenship, is legal under the Constitution's executive war powers. Congress has reinforced that power by passing the Authorization for Use of Military Force and other national defense acts after 9/11 that expressly sanction the use of deadly force against al Qaeda and "associated forces."

As for releasing the memos, we think the executive has a right to keep them confidential. But Attorney General Eric Holder was only too happy in 2009 to declassify the Yoo memos when he could score political points against his predecessors. Now Mr. Holder favors secrecy, though a news report late Tuesday said he may release a redacted version.

The real problem with Mr. Barron is his liberal judicial philosophy. In 2001 Mr. Barron wrote an article for the Duke Law Journal criticizing the "new federalism" because central authority can make better decisions for localities than the locals can. The revival of federalism is dangerous, he wrote, because it prevents us from "thinking creatively about ways central governments can promote local power."

In 2006 Mr. Barron wrote "What's Wrong With Conservative Constitutionalism" for the Harvard Law and Policy Review, laying out a theory of "progressive constitutionalism" and judicial activism that would make Sonia Sotomayor blush.

He called on liberal jurists to use the courts to achieve progressive political goals. He cited the example of gay civil unions, which he said "have generally held up against political efforts to overturn them," and that "there is little doubt that state legislatures would not have responded as quickly without judicial intervention. It was courts acting in advance of political will that made the difference." Ah, the judicial vanguard leading the benighted public.

As Mr. Barron sees it, the courts are a political battleground that requires cunning and long-term strategy. To defeat conservative constitutionalism, he writes, the judicial left must be wary of "becoming overly invested in judicial deference as a progressive constitutional position."

Sounds to us like Mr. Barron ought to run for Congress because as a judge he's going to be one more liberal politician. Mr. Paul is opposing Mr. Barron for the wrong reasons, but it would be a service to the country and the Constitution if Mr. Barron never makes it to the First Circuit Court of Appeals.

Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law. They have also retreated from descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case.

The Supreme Court handed President Obama his 13th unanimous loss in two years on Thursday, and this one may be the most consequential. All nine Justices voted to overturn Mr. Obama's non-recess recess appointments as an unconstitutional abuse of power.

Over nearly 238 years of American history, the Supreme Court has never had to review the President's authority to temporarily fill vacant executive offices when Congress is adjourned. Mr. Obama's 2012 maneuver to void the Senate's advice and consent role triggered a judicial intercession, and defeats at the High Court are seldom as total as this one.

Two years ago Mr. Obama packed the National Labor Relations Board with three new members and made Richard Cordray the chief of the new Consumer Financial Protection Bureau. Other Presidents have made such appointments and we've long supported that authority—as long as they are made when Congress is genuinely in recess.

But in this case the Senate was conducting pro forma proceedings (gavel in, gavel out, every three days) because neither chamber can adjourn without the other's permission under Article I, Section 5. The House refused to consent to prevent Mr. Obama from making recess appointments, so he simply assumed the power to define on his own when a coequal branch of government is at work.

On this invention, the President could presumably make recess appointments overnight or during a lunch break, but Mr. Obama's provocation was deliberate. "I refuse to take no for an answer," he justified his behavior at a campaign event the day after the appointments. Democrats ran the Senate then and run it now. Mr. Obama merely thought the normal confirmation checks and balances too frustrating and preferred to install his union appointees without a debate.

He should have read the Recess Appointments Clause before Justice Stephen Breyer did it for him. In Noel Canning v. NLRB, a Washington state soda bottler challenged a board decision on grounds that the recess appointments were null and thus the board lacked the three-member quorum to do business. Because the Constitution delegates power to each branch to independently make their own rules, writes Justice Breyer, "the Senate is in session when it says it is."Enlarge Image

AFP/Getty Images

Justice Breyer surveys the legal theories and evolution over time of recesses and recess appointments since the Federalist Papers. This exception to advice and consent was necessary because Members of the early Congresses were out of town for months at a time, while the executive branch was so small that a few job openings could shut down the government. In the 20th century, recess appointments became more common even as their original purpose disappeared.

Deferring to this historical practice, Justice Breyer arrives at a pragmatic test: The President may fill vacancies when the Senate has not transacted business for 10 days or more, whether within or between Congress's two year-long formal sessions.

The Constitution lacks any such 10-day clause, and it is troubling that Justice Breyer seems to have invented it on his own. But still his invention narrows the recess power. And had Justice Anthony Kennedy flipped and joined the four conservatives, recess appointments would have been diminished even more.

In a concurrence with the judgment only, Justice Antonin Scalia makes a stricter reading of the Constitution's language about "vacancies that may happen during the recess." His interpretation would limit recess appointments to only the break between formal sessions and only for positions that open during that window. Justice Breyer "casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best," he writes.

We admire Justice Scalia's originalism, but the clause is ambiguous; Thomas Jefferson puzzled over its meaning as early as 1802. But Justice Scalia's reasoning shows why Mr. Obama's gambit was so reckless. "Friction between the branches is an inevitable consequence of our constitutional structure," Justice Breyer instructs, and the legislature and executive are supposed to work things out along the way. By violating these norms, Mr. Obama invited the judiciary to mediate and jeopardized the recess power for all future Presidents.

The Framers did not vest the executive with the unilateral appointment authority that Mr. Obama thinks he is entitled to. They wanted to diffuse power across the federal government to protect individual liberty. Wilfully bypassing advice and consent also subverts political accountability, which a former constitutional law professor ought to know.

Mr. Obama has thus strengthened the Senate, now armed with a judicial guide to preventing recess appointments: Presidents must take no for an answer. The ruling also opens to challenge some 436 decisions that the NRLB issued while the imposter members were seated.

But the true import of Noel Canning is that even liberal Justices are alarmed that Mr. Obama's executive law-making is visiting real damage on the Constitution. This will not be the last legal torpedo aimed at the hull of his increasingly willful Presidency.

Technically it is not a C'l law case, but because so many people think it is, I post this WSJ piece here:

For-profit corporations, at least if they are "closely held," can raise conscientious objections to government policies under the Religious Freedom Restoration Act of 1993. So the Supreme Court held today, by a vote of 5-2, in the much-anticipated case now styled Burwell v. Hobby Lobby.

The vote in Hobby Lobby's favor was actually 5-4, along familiar lines, but as we shall explain, two dissenting justices declined to address the question whether RFRA's protections can apply to for-profit companies. The majority, in a decision by Justice Samuel Alito held that Hobby Lobby and two other companies need not comply with the ObamaCare birth-control mandate, to which their owners object on religious grounds.

The plaintiffs in these cases did not claim their First Amendment rights had been violated; such a claim, as we noted in March, would almost certainly have been precluded by the 1990 case of Employment Division v. Smith. But Congress responded to that case by enacting RFRA, which mandates the courts apply "strict scrutiny" to government policies as enforced against litigants who object on religious grounds.

In order to meet strict scrutiny, the government must show both that the policy is justified by a "compelling" interest and that it is the "least restrictive means" of furthering that interest. At least five justices seemed to agree that the interest in assuring cost-free access to the abortifacient contraceptives in question is "compelling": the four dissenters and Justice Anthony Kennedy, who in a concurring opinion wrote: "It is important to confirm that a premise of the Court's opinion is its assumption that the HHS regulation at issue here furthers a legitimate and compelling interest in the health of female employees."

That's true, but the premise was stipulated--"we assume," wrote Justice Alito--not decided. For the plaintiffs to prevail, it would be sufficient for the government to fail either test, and as Justice Alito argues, it clearly failed the least-restrictive-means test:

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty.

Some religious nonprofits have argued that the HHS accommodation is too restrictive and violates their First Amendment rights; this case does not address that question--or, indeed, whether "an approach of this type complies with RFRA," in Alito's words. The majority cite another less-restrictive alternative: a government program providing contraceptives directly.

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a "less restrictive alternative."

As Kennedy gently observes in response, "the Court's opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent." Ginsburg suggests the decision would open up the possibility of religious exemptions from statutes prohibiting race discrimination, a claim Alito and the majority flatly reject: "The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."

Ginsburg's claim that "the court decides" religious opt-outs should be available when a "less restrictive alternative" is available is misleading. Here the court did not, as it frequently does by necessity, apply a standard of its own invention in interpreting broadly written constitutional language. The "less restrictive alternative" language is in the RFRA statute; it was Congress, not the court, that made that decision.

The dissent's response is to argue that no less restrictive means is in fact available, because the court left for another day the question of whether the opt-out HHS has made available to nonprofits is RFRA-compliant, and because Congress has not in fact enacted a free-contraceptive program that would cover Hobby Lobby's employees. But RFRA's protections would be meaningless if they permitted government to use any means but the least restrictive under current law.

Ginsburg also argues that for-profit corporations have no rights under RFRA, but that portion of her dissent is joined only by Justice Sonia Sotomayor. Justices Stephen Breyer and Elena Kagan, dissenting separately, write: "We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993." Hence the 5-2 vote noted above.

The majority opinion, meanwhile, is limited in its application to "closely held" corporations. But Justice Alito observes for the majority: "No known understanding of the term 'person' includes some but not all corporations." He's rebutting the argument that nonprofits can be distinguished from for-profits, but the principle would seem to apply equally to a distinction between closely held and publicly traded ones. On the other hand, the more diffuse the ownership, the less likely this type of claim—a conscientious religious objection—is to come up.

The decision, and the left's predictably overwrought response to it, underscore a contradiction in the contemporary liberal worldview. "Corporate power is too big," fumed Sally Kohn on CNN this morning. "The Supreme Court is doing the bidding of big business."

But Hobby Lobby brought this lawsuit in the name of conscience, not profit. And isn't it usually liberals who fault corporations for being insufficiently conscientious?

The first plus-factor criterion is to demonstrate the lack of a private plaintiff. In Foley’s and Rivkin’s characterization, the president’s actions are “benevolent” suspensions of law — that is, they are specially intended to assist particular groups (young immigrants or small businesses, for example). Because assisting certain people was the president’s aim, no individuals have suffered sufficient injury to have standing to sue. “No one can challenge benevolent suspensions in court except Congress, because they constitute an institutional injury to Congress qua Congress,” Foley explains. The offense is not against private citizens; it is against the powers that the Constitution guarantees to Congress as a body.

Along with demonstrating the impossibility of a private plaintiff, the House should explicitly authorize the lawsuit, they say, through either a formal resolution or the use of the Bipartisan Legal Advisory Group (BLAG), a standing group of House members that is authorized by House rules to represent that chamber in the courts. This would count as a plus factor because institutional-standing cases do not require formal authorization from the institution. The House members could therefore file on behalf of the House without getting the body’s formal approval, but such approval would probably help the case.

The House should also show that no political remedy (“self-help”) for the situation is available. This third element is a point of contention among legal theorists on the right. Opponents of the House lawsuit contend that the Constitution provides the House with two obvious remedies, neither of which it has exercised: the power of the purse and the power of impeachment. Foley and Rivkin counter that these are not “proportionate remedies” to the problem at hand. With regard to impeachment, Foley asks: “What do you do when the president’s own party controls one of the chambers of Congress?” Moreover, “impeachment is overkill for this particular transgression,” she says. “All Congress wants is for the president to faithfully execute the law. This does not mean that they think he should be kicked out of office.” The second option, cutting funds, “creates major distortions in political accountability, which is the genesis, the heart, of the notion of the separation of powers.” Congress, says Foley, should not be blamed for the president’s misdeeds — but that is just what will happen if the House has no recourse but to penalize innocent organizations as a means of punishing the president. Political self-help is important, Foley observes, “but only when proportionate and related to the transgression.”

If the House can establish standing by fulfilling these four criteria — the establishment of injury-in-fact, as required by the Constitution, and the three “plus” factors — they will have the opportunity to make their case to the courts that the president has flouted his constitutional mandate. While they believe there are a number of transgressions to choose from, Foley and Rivkin plan to present only the strongest infraction in court. ...

The Case for Suing the PresidentRewriting ObamaCare laws on the fly is a violation of the constitutionally mandated separation of powers.by David B. Rivkin Jr. and Elizabeth Price FoleyJuly 30, 2014 7:06 p.m. ET

'So sue me" is President Obama's message to Congress. And on Wednesday the House of Representatives took up his taunt, authorizing a lawsuit to challenge the president's failure to faithfully execute provisions of the Affordable Care Act as passed by Congress. The House lawsuit is no "stunt," as Mr. Obama has characterized it. The lawsuit is necessary to protect the Constitution's separation of powers, a core means of protecting individual liberty. Without a judicial check on unbounded executive power to suspend the law, this president and all who follow him will have a powerful new weapon to destroy political accountability and democracy itself.

Article I of the Constitution vests all legislative power in Congress. Article II imposes a duty on the president to "take care that the laws be faithfully executed." When a law is unambiguous, the president cannot rewrite it to suit his own preferences. "The power of executing the laws," as the Supreme Court emphasized in June in Utility Air Regulatory Group v. EPA, "does not include a power to revise clear statutory terms that turn out not to work in practice." If a law has defects, fixing them is Congress's business.

These barriers between the branches are not formalities—they were designed to prevent the accumulation of excessive power in one branch. As the Supreme Court explained in New York v. United States (1992), the "Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day."

The barriers also reflect the Framers' belief that some powers are better suited for a particular branch of government because of its institutional characteristics.

Congress has the exclusive authority to make law because lawmaking requires pluralism, debate and compromise, the essence of representative government. If Congress cannot achieve consensus, that doesn't mean Congress is "broken." A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president's bypassing Congress with a pen and phone, as Mr. Obama claimed the power to do early this year.

The separation of powers also guarantees political accountability. When Congress makes a law and the president executes it as written, citizens will know whom to reward or punish at the next election.

A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.

If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.

Over time, the Supreme Court has come to recognize that preserving the constitutional separation of powers between the branches of government at the federal level, and between the states and the federal government, is among the judiciary's highest duties.

In Garcia v. San Antonio Metropolitan Transit Authority(1985), the court was asked whether the wage and hour provisions of federal labor law could be imposed on states as employers. The justices refused to examine the substance of the states' claim, declaring that the so-called vertical separation of powers—federalism—was "more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." Because members of Congress are elected on a state-by-state basis, the court thought the national political process itself was the more proper way to protect states' rights against federal encroachment. It was a mistake the court would quickly regret.

Seven years later, in New York v. United States (1992), the Supreme Court did an about-face, acknowledging that the political-remedies process alone could not safeguard the separation of powers, and invalidated a federal law that forced states to "take title" to low-levelradioactive waste. The court abandoned the "hands off" position of Garcia because if it did not do so, the federal government could coerce states to do the federal government's bidding—a power that could have severely undermined the federalist structure of the Constitution, and hence, political accountability.

Litigation in federal court is an indispensable way to protect all branches of government against encroachment on their authority. States have successfully sued to stop federal intrusions into their constitutionally reserved powers. State legislators have also successfully sued to protect their institutional authority when state executives nullified their legislative power.

The executive branch is no different. President Obama has repeatedly resorted to litigation to vindicate the executive branch's constitutional prerogatives. His administration has routinely sued states for violating federal laws, in cases such as Arizona v. United States (2012), involving the constitutionality of a state law dealing with illegal immigration.

And the Supreme Court has declared unconstitutional portions of congressional statutes that encroached on the federal judiciary's power. In Northern Pipeline Construction Company v. Marathon Pipe Line Company (1982), the court invalidated a transfer of judicial power to "judges" in bankruptcy cases who were not part of the regular federal judiciary and were exercising powers conferred by Congress, rather than by the Constitution.

Congress is not an institutional orphan. Like the president and the states, it can rightfully expect courts to enforce its institutional authority. Any other result would establish an anomalous loophole preventing Congress, and Congress alone, from vindicating its constitutional prerogatives. Courts would not countenance such a lapse in the constitutional architecture, with the potential to inflict enormous damage to the separation of powers, political accountability and individual liberty.

The problem will be cured once the judiciary declares unconstitutional the president's unilateral suspension of Affordable Care Act provisions and vacates the executive branch measures through which these suspensions were effected.

Mr. Rivkin, a partner at the firm Baker Hostetler LLP, served in the Justice Department and the White House Counsel's Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.

To me it seems more a ploy to try to appease Conservatives (aka Boehner using this to show case that he IS standing up to the self Chosen one). Would this not take more than a year or longer. By then we will have several million more illegals in the US (actually now that I think of it immigration is not even in the law suit - oh my God - what a mea culpa!).

Levin doesn't think it will work. Not that he is always right and many would argue not politically strategically helpful but he understands these things a ton more than me.

SOMETHING rather dangerous is happening in American politics right now, all the more so for being taken for granted by many of the people watching it unfold.

I do not mean the confusion of House Republicans, or the general gridlock in Congress, which are impeding legislative action on the child migrant crisis (among other matters). Incompetence and gridlock are significant problems, indeed severe ones, but they’re happening within the context of a constitutional system that allows for — and can survive — congressional inaction.

What is different — more cynical and more destructive — is the course President Obama is pursuing in response.

Over the last month, the Obama political apparatus — a close aide to the president, the Democratic Congressional Campaign Committee and the “independent” voices at MSNBC — has been talking nonstop about an alleged Republican plan to impeach the president. John Boehner’s symbolic lawsuit against the White House has been dubbed “impeachment lite,” Sarah Palin’s pleas for attention have been creatively reinterpreted as G.O.P. marching orders, and an entire apocalyptic fund-raising campaign has been built around the specter of a House impeachment vote.

Anyone paying attention knows that no such impeachment plan is currently afoot. So taken on its own, the impeachment chatter would simply be an unseemly, un-presidential attempt to raise money and get out the 2014 vote.

But it isn’t happening in a vacuum, because even as his team plays the impeachment card with gusto, the president is contemplating — indeed, all but promising — an extraordinary abuse of office: the granting of temporary legal status, by executive fiat, to up to half the country’s population of illegal immigrants.

Such an action would come equipped with legal justifications, of course. Past presidents have suspended immigration enforcement for select groups, and Obama himself did the same for certain younger immigrants in 2012. A creative White House lawyer — a John Yoo of the left — could rely on those precedents to build a case for the legality of a more sweeping move.

But the precedents would not actually justify the policy, because the scope would be radically different. Beyond a certain point, as the president himself has conceded in the past, selective enforcement of our laws amounts to a de facto repeal of their provisions. And in this case the de facto repeal would aim to effectively settle — not shift, but settle — a major domestic policy controversy on the terms favored by the White House.

This simply does not happen in our politics. Presidents are granted broad powers over foreign policy, and they tend to push the envelope substantially in wartime. But domestic power grabs are usually modest in scope, and executive orders usually work around the margins of hotly contested issues.

In defense of going much, much further, the White House would doubtless cite the need to address the current migrant surge, the House Republicans’ resistance to comprehensive immigration reform and public opinion’s inclination in its favor.Continue reading the main story Continue reading the main story

But all three points are spurious. A further amnesty would, if anything, probably incentivize further migration, just as Obama’s previous grant of legal status may well have done. The public’s views on immigration are vaguely pro-legalization — but they’re also malleable, complicated and, amid the border crisis, trending rightward. And in any case we are a republic of laws, in which a House majority that defies public opinion is supposed to be turned out of office, not simply overruled by the executive.

What’s more, given that the Democrats controlled Congress just four years ago and conspicuously failed to pass immigration reform, it’s especially hard to see how Republican intransigence now somehow justifies domestic Caesarism.

But in political terms, there is a sordid sort of genius to the Obama strategy. The threat of a unilateral amnesty contributes to internal G.O.P. chaos on immigration strategy, chaos which can then be invoked (as the president did in a Friday news conference) to justify unilateral action. The impeachment predictions, meanwhile, help box Republicans in: If they howl — justifiably! — at executive overreach, the White House gets to say “look at the crazies — we told you they were out for blood.”

It’s only genius, however, if the nonconservative media — honorable liberals and evenhanded moderates alike — continue to accept the claim that immigration reform by fiat would just be politics as usual, and to analyze the idea strictly in terms of its political effects (on Latino turnout, Democratic fund-raising, G.O.P. internal strife).

This is the tone of the media coverage right now: The president may get the occasional rebuke for impeachment-baiting, but what the White House wants to do on immigration is assumed to be reasonable, legitimate, within normal political bounds.

It is not: It would be lawless, reckless, a leap into the antidemocratic dark.

Not suing. I made that pretty clear, I thought. Additional example of why not: legally, part of having standing to sue is to show actual injury. When the House has voted to end ACA what, 40 time (50?), to argue that the president's actions "injure" Congress is odd. (Note, also, that I have argued on these boards that presidential power has exceeded constitutional grants, so I am not against Congress acting.)

Boehner argued "legislative branch has an obligation to defend the rights and responsibilities of the American people, and America's constitutional balance of powers." And to do this, he goes to the judiciary?!? The article you posted suggested that conservatives/Republicans aren't talking impeachment. Why not? If he believes that "the President's flippant dismissal of the Constitution we are both sworn to defend" is true, it seems to me that there is a constitutional remedy.

Three days before the House vote, Boehner opined in the USA Today that "President Obama has overstepped his constitutional authority — and it is the responsibility of the House of Representatives to defend the Constitution." Why the HOUSE?? Might it be that it is the chamber that begins impeachment proceedings? If Boehner truly believes that I "the president's actions in a number of areas... exceed his constitutional authority," is there not a constitutional remedy?

In the U.S. Constitution, America's Founding Fathers crafted the world's preeminent governing document securing Liberty. Yet they also understood their work wasn't perfect, and thus they created an avenue for amending it. Unfortunately, for most of the last century, the Left discarded the amendment process in favor of adopting what they call the "living constitution" -- a malleable document that means whatever they want it to mean at the time they want to mean it.

Outgoing Sen. Tom Cole (R-OK) says the time has come to rectify some of the wrongs done by calling for an Article V convention to propose amendments to the Constitution. That is different from a constitutional convention in which a new document would be written.

Article V of the document lays out the process for amendments: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress."

All 17 amendments enacted after the Bill of Rights were accomplished through the first of the two constitutional methods prescribed -- two-thirds of both houses passing an amendment. There has never been a convention held upon application by the states.

But Coburn is aiming high. "I think [George] Mason was prophetic that we would devolve to where the federal government became too powerful, too big and too unwieldy," he said. "That’s why he put Article V in." There are specific things Coburn wants, too. "I think we ought to have a balanced budget amendment," he asserted. "I think we ought to have term limits. I think we ought to put a chokehold on regulation and re-establish the powers of the Congress."

The last item is of utmost concern given the imperial presidency of the last six years. As The Hill notes, "President Obama’s use of executive action to pursue an array of policy goals related to climate change, immigration and healthcare reform has precipitated what many conservatives are calling a constitutional crisis."

It's not just conservatives. Liberal law professor Jonathan Turley of George Washington University, a long-time Obama supporter, warned recently, “We are seeing the emergence of a different model of government, a model long-ago rejected by the framers.” Turley added that we have "a system that is in crisis." In fact, he argued, "The president’s pledge to effectively govern alone is alarming, and what is most alarming is his ability to fulfill that pledge. When a president can govern alone, he can become a government unto himself, which is precisely the danger the framers sought to avoid.”

Coburn knows a convention would never succeed if it becomes only a way to push for partisan changes. Lawrence Lessig, a liberal professor at Harvard Law School, supports a convention, though he agrees with Coburn that politicizing it would guarantee failure. Lessig says, “The legitimate constitutional questions that are being put on the table are questions about the balanced budget, the size of government ... as well as the integrity of the electoral process. That’s the stuff the people on the left are talking about."

All conservatives see a federal government that has completely disregarded the Constitution and Rule of Law, yet many see problems with calling an Article V convention. Amending the Constitution assumes, first of all, that the federal government would abide by those amendments when it has clearly not remained within current bounds. A convention also opens the door to undesirable changes (Democrat efforts to stifle free speech, for example) -- but then again, so did starting a revolution. That said, any proposed amendments would still have to clear three-fourths of the states.

(As an alternative to Coburn's proposal, Mark Alexander has suggested a Constitutional Confederation.)

In the words of George Washington, “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution, which at any time exists, ‘till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all."

Coburn's idea has its merits, but our primary hope in restoring that truth is educating the American people about Essential Liberty and in electing representatives, including at the state level, who will honor their oath to "support and defend" the Constitution, and then to hold those government officials accountable.

As was the case at the dawn of American Liberty, we are but a small band of American Patriots facing an empire of statists, but we remain steadfast in our sacred oath to support and defend the Constitution.

"The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution, which at any time exists, ‘till changed by an explicit and authentic act of the whole People, is sacredly obligatory upon all." --George Washington (1796)

The "law of unintended consequences" is an idiomatic admonition regarding the manipulation of complex systems. The notion of unintentional consequence has its origin with 18th-century political economist Adam Smith and the Scottish Enlightenment.

In the present, it is used more in rebuttal to the hubristic notion that humans are so brilliant and possess sufficient discernment about complex systems that we can predict outcomes with great accuracy. It is similar to Murphy's Law -- "Anything that can go wrong will go wrong" -- except it is not asserting the absolute.

20th-century sociologist Robert Merton noted three primary factors contributing to unanticipated consequences: First, incomplete analysis because it is impossible to anticipate all variables; second, errors in analysis of what is known about the problem; third, immediate interests overriding long-term interests.

Our nation is besieged by unintended consequences. Most notably, the 2008 election of a charismatic "community organizer" peddling a "hope and change" mantra. It is now painfully clear, after the re-election of Barack Obama, that his mantra has resulted in a plague of pessimism and an atrocious fundamental transformation of America.But not all unanticipated consequences are bad.

Shortly after Obama's first election, a grassroots groundswell of concern over our government's abject disregard for the Constitution emerged. That concern galvanized in the Tea Party Movement, a broad coalition of Americans from all walks of life with a common goal of restoring Constitutional Rule of Law and the Essential Liberty enshrined therein.

Fortunately, this movement is more ideological than political. While the media labels some constitutional constructionists as "Tea Party candidates," the underlying movement defies traditional political party labels -- and this constitutional coalition is alive and well.

Beyond efforts to restore the plain language authority of our Constitution by way of the ballot box, several compelling arguments for constitutional amendments have emerged in an effort to circumvent restoration by way of the bullet box.

There are two proscriptions for amending our Constitution. These are specified in Article V as ratified.

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

In other words, to amend our Constitution, two-thirds of the House and Senate must adopt an amendment or two-thirds of state legislatures (34) must request Congress convene an Article V Convention to consider an amendment. Then, that amendment must be affirmed by either three-fourths (38) of state legislatures or state conventions.

Since our Constitution was ratified and became operational on March 4, 1789, there have been approximately 11,600 amendment proposals, of which 33 were adopted by Congress and sent to the states for ratification. Of those, 26 amendments were ratified by state legislatures and one, the 21st Amendment, which repealed the 18th Amendment (prohibition on alcohol), was ratified by state conventions.

The most significant call on Congress to convene an Article V Convention in recent history was Ronald Reagan's proposal for a Balanced Budget Amendment (as currently required by every state constitution but Vermont). On March 26, 2014, Michigan's legislature became the 22nd applying to Congress for an Article V convention seeking a Balanced Budget Amendment.

What makes the Michigan request notable is that there already are 12 applications from other states for conventions to consider a Balanced Budget Amendment. All were rescinded -- most because it was thought that the Gramm-Rudman-Hollings Act negated the need for a Balanced Budget Amendment. Of course, Congress created as many bypasses around Gramm-Rudman as they have around the Constitution.

But there is a debate as to whether a state may rescind its Article V application. Rep. Duncan Hunter (R-CA) has called on Speaker John Boehner (R-OH) to seek a legal opinion on whether that threshold has been met: "With the decision by Michigan lawmakers, it is important that the House -- and those of us who support a Balanced Budget Amendment -- determine whether the necessary number of states have acted and what the appropriate role of Congress should be in this case."

Indeed, that answer is being sought by quite a few constitutional scholars who are advocates of Article V Conventions, including Lawrence Lessig, Sanford Levinson, Larry Sabato, Jonathan Turley and Mark Levin.

Levin, who distributes our Essential Liberty Guides at conservative conferences, has generated substantial interest and support for 11 amendments he outlined in his book, "The Liberty Amendments: Restoring the American Republic." He is calling for a national dialogue on these amendments, with the ultimate objective of stopping unmitigated and unlawful violations of our Constitution by the central government.

Conservative political analyst George Will is an advocate of another measure, The Compact for America, a Goldwater Institute initiative which, according to Will, "would use the Constitution’s Article V to move the nation back toward the limited government the Constitution’s Framers thought their document guaranteed."

The Compact is a renewed federal budget containment measure, and as Will concludes, "In the 85th and final of the Federalist Papers written to persuade Americans wary of centralized power to ratify the Constitution, Alexander Hamilton said: 'We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.' States would be the prime movers of, and would be substantially empowered by, the institute’s amendment-by-compact plan."While we await a legal determination from Boehner on the question of whether the 34-state threshold for an Article V Convention has been met, there are two important considerations about which approach should be taken to enact amendments.

First, it is not clear whether the scope of amendments to be considered by a convention, once convened, can be limited. Could those advocating statist tyranny commandeer a convention?

Recall, if you will, that on February 21, 1787, when the Congress of the Confederation endorsed a measure to revise the Articles of Confederation, it summoned state delegates "for the sole and express purpose of revising the Articles of Confederation" in ways that, when approved by Congress and the states, would "render the federal constitution adequate to the exigencies of government and the preservation of the Union." Indeed, Article 13 of the Articles of Confederation set forth that it was "perpetual" until any alteration was "agreed to in a Congress of the United States, and afterwards confirmed by the legislatures of every State."

But the delegates to the original Constitutional Convention determined that the Articles were not workable and proposed an entirely new Constitution, in effect discarding the Articles of Confederation without objection from the states. Fortunately, our Framers' objective was to codify Liberty as "endowed by our creator," and as specified in our Declaration of Independence.

They believed that all who followed in the executive, legislative and judicial branches of government, and those duly authorized thereunder, would abide by their sacred oaths to Support and Defend" our Constitution.

According to Alexander Hamilton, "[T]he present Constitution is the standard to which we are to cling. Under its banners, bona fide must we combat our political foes -- rejecting all changes but through the channel itself provides for amendments."

If that legal and moral obligation had been compliantly observed, this column would not even be necessary.

So what is the risk that such lawlessness would hijack an Article V Convention, especially since, as James Madison questioned in his notes on Article V ambiguities, "How was a Convention to be formed? By what rule decide? What the force of its acts?" None of those questions are answered in the Constitution.

Federalist Society constitutional expert Michael Stokes Paulsen, Distinguished University Chair and Professor at St. Thomas School of Law, argues that such a convention would have the "power to propose anything it sees fit."

My colleague, Heritage Foundation constitutional scholar Matt Spaulding, notes, "The largest question is whether an amendments convention can be limited to specific amendments or even topics. The pro-convention argument assumes that the power to limit the convention is inherent in the power to call the convention in the first place. I’m not so sure that follows: The text says that upon application of the states Congress 'shall call a Convention for proposing Amendments,' not for confirming a particular amendment already written, approved, and proposed by state legislatures (which would effectively turn the convention for proposing amendments into a ratifying convention). Indeed, it is not at all clear as a matter of constitutional construction (and doubtful in principle) that the power of two-thirds of the states to issue applications for a convention restricts, supersedes, or overrides the power of all the states assembled in that convention to propose amendments to the Constitution."Thus, given the persuasive power of the Leftmedia and Democratic Party conglomerate, their ability to advance populist measures for amendment consideration could spell the end of what remains of our Constitution.

But the second consideration about which of the two approaches should be taken to enact amendments is the overarching question of whether either approach will matter in the end. For as John Adams noted, "We have no government armed with power capable of contending with human passions unbridled by morality and religion... Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

If the executive, legislative and judicial branches of the central government do not abide by existing constitutional constraints, why would anyone believe they would abide by additional constraints in the future?

In either case, caveat emptor.

(Note: In an upcoming column, I will reintroduce a third measure, the establishment of a Constitutional Confederation of the States, to restore constitutional integrity, which affirms the Constitution as ratified, rather than seeks to amend it further.)

Cooper was a staunch supporter of the Republican Party. He voted for Calvin Coolidge in 1924, and for Herbert Hoover in 1928 and 1932. He campaigned for Wendell Willkie in 1940.[46] In 1944 he attended a 93,000-large Republican rally in the Los Angeles Coliseum in support of the Dewey-Bricker ticket.[47][48] While filming Good Sam in October 1947, he testified before the House Committee on Un-American Activities where he was asked if he had observed "communistic influence in Hollywood".[49] Cooper named no one in particular but said he had "turned down quite a few scripts because I thought they were tinged with communistic ideas".[49] He also testified that he had heard statements such as, "Don't you think the Constitution of the United States is about 150 years out of date" and, "Perhaps this would be a more efficient government without a Congress"—statements he characterized as "very un-American".[49]****

The crucial actor here is Sen. Robert Menendez , the tough-minded New Jersey Democrat and Foreign Relations Committee chairman. Sen. Menendez’s position is vital because Majority Leader Harry Reid will give the president a pass, as he has for six years. Sen. Reid’s genuflection to the White House raises serious issues because it fundamentally undermines James Madison ’s vision of how the Constitution limits overweening government power.

The problem, as the Founders saw it, is to prevent the president or Congress from acquiring unchecked power, as they will inevitably try to do. The solution was to divide powers between the executive and the legislature and hope that they would be constrained by countervailing institutional interests. But Harry Reid is a “party man,” not a “Senate man.” The question is whether Sen. Menendez and perhaps other senior Democrats with strong foreign-policy credentials, such as New York Sen. Charles Schumer and California Sen. Dianne Feinstein, chairwoman of the Select Committee on Intelligence, will break ranks with Sen. Reid and the White House.

Menachem Binyamim Zivotofsky is soon to become a bar mitzvah, but his place of birth is still in dispute.

This much is clear: He was born on Oct. 17, 2002, in Shaare Zedek Hospital, in western Jerusalem. His parents, Ari and Naomi, are U.S. citizens, which makes him a U.S. citizen as well. But when his mother visited the U.S. Embassy in Tel Aviv to apply for a passport and birth documentation for her newborn son, and listed his “place of birth” on both applications as Israel, consular officials balked.

Since 1948, successive U.S. presidents have taken the position that Jerusalem is a city without a country, pending the conclusion of Israeli-Palestinian peace talks. Under State Department policy, personal-status documents of Jerusalem-born U.S. citizens such as Mr. Zivotofsky list only the city “Jerusalem” as the passport holder’s place of birth, and not Israel. That Jerusalem has, as a matter of fact, been the seat of Israel’s government for almost seven decades is of no relevance to the State Department.

In 2002 Congress stepped in and passed a law that directs the Secretary of State to permit U.S. citizens born in Jerusalem to choose to list “Israel” as their place of birth. The purpose of the law was to provide citizens like Mr. Zivotofsky the opportunity to self-identify as being born in Israel. But Presidents Bush and Obama have refused to implement the statute, citing what they called the president’s “exclusive” powers to direct the nation’s foreign affairs and to recognize the boundaries of foreign powers. His parents filed a lawsuit on behalf of their child, then a year old.

Fast-forward a decade. Mr. Zivotofsky is now at the center of a skirmish between the president and Congress with profound implications for our system of checks and balances. The U.S. Supreme Court is set to hear arguments next week in Zivotofsky v. Kerry.

The conventional wisdom is that this is a case the plaintiff cannot win. Why should the Supreme Court honor the request of a 12-year-old boy to effectively override long-standing U.S. foreign policy on a hot-button issue—the status of Jerusalem—of international importance?The city of Jerusalem ENLARGEThe city of Jerusalem Corbis

The answer is that it’s not a lost cause—because Congress is on Mr. Zivotofsky’s side. The law giving him the right to list “Israel” as his place of birth passed almost unanimously in both houses of Congress. The entire Senate, as well as a number of individual U.S. representatives, have submitted friend-of-the-court briefs urging the Supreme Court to enforce the law.

The right question to ask, then, is whether the executive branch is free to ignore Congress’s directives whenever legislation touches on foreign affairs. Successive presidents have taken the position that it is, yet there are two major problems with this position.

First, you can search the Constitution from beginning to end for an exclusive commitment of foreign-affairs authority to the president. You won’t find it. To the contrary, the Constitution equips Congress with many foreign-affairs powers, including commerce with other nations, the ratification of treaties, immigration regulations and control over declarations of war. As the constitutional scholar Edwin Corwin long ago noted in his book “The President: Office and Powers, 1787-1984,” the Constitution is “an invitation to struggle for the privilege of directing American foreign policy.” Since the nation’s founding, Congress and the president have been engaged in that fruitful and dynamic struggle. Our tripartite system does not end at our borders.

Second, the Supreme Court has repeatedly pushed back against broad assertions of exclusive executive power that, as the president urges in Zivotofsky, purport to negate reasonable legislation by Congress. For instance, in 1977 the court rebuffed President Nixon ’s challenge to a post-Watergate act of Congress that placed Nixon’s papers in federal custody—to thwart their destruction. In 1988 the court rejected President Reagan’s contention that restrictions Congress imposed on the removal of an independent counsel by a presidential appointee impermissibly interfered with the president’s “appointments clause” powers.

The Constitution permits—and even encourages—certain kinds of intermingling between the branches of government, so long as Congress does not prevent the executive branch from “accomplishing its constitutionally assigned functions,” as the Supreme Court wrote in the Nixon case. The Jerusalem passport statute Congress passed merely provides a U.S. citizen with the opportunity to self-identify as being born in Israel in that citizen’s travel and personal status documents. It does not try to alter the president’s position of official neutrality with respect to the status of Jerusalem. Allowing the president to wield an “absolute negative on the legislature” even where Congress has acted so modestly would, as James Madison warned in Federalist No. 51, open the door for executive powers to be “perfidiously abused.”

With these principles in mind, the Supreme Court should once again reject the president’s assertion of unbridled executive power and uphold the law on narrow grounds, preserving Congress’s rightful role in foreign affairs. That way, guests at Mr. Zivotofsky’s bar mitzvah can raise a glass not only to finally settling this young man’s place of birth—but also to the outsize role he has played in preserving our system of checks and balances.

Mr. Shapiro is a constitutional litigator at Gibson, Dunn, & Crutcher in New York, and counsel to amici curiae members of Congress in Zivotofsky v. Kerry.

The Next Attorney GeneralOne area to question Loretta Lynch is civil asset forfeiture.Loretta Lynch, U.S. attorney in Brooklyn, New York, speaks after being nominated by U.S. President Barack Obama. ENLARGELoretta Lynch, U.S. attorney in Brooklyn, New York, speaks after being nominated by U.S. President Barack Obama. European Pressphoto AgencyNov. 9, 2014 7:00 p.m. ET64 COMMENTS

The early reporting on President Obama ’s choice to be the next Attorney General is that few in Washington know much about her. That may be one of the reasons Mr. Obama picked Loretta Lynch after last week’s election rout. Barring some future revelations, the U.S. Attorney for the Eastern District of New York isn’t likely to stir a partisan brawl with the new Republican Senate.

This does not mean that she shouldn’t receive a thorough vetting. She has been a member of Eric Holder’s Advisory Committee of U.S. Attorneys, and as such should be questioned about his policies. These include his use of race as a political cudgel—especially in law enforcement. Mr. Holder has used “disparate impact” theory to coerce settlements from banks and other businesses based on statistics but no proof of discrimination. A federal judge recently threw out the Administration’s disparate-impact rule in housing, and the Supreme Court is hearing a separate legal challenge.

As a prosecutor Ms. Lynch has also been aggressive in pursuing civil asset forfeiture, which has become a form of policing for profit. She recently announced that her office had collected more than $904 million in criminal and civil actions in fiscal 2013, according to the Brooklyn Daily Eagle. Liberals and conservatives have begun to question forfeiture as an abuse of due process that can punish the innocent.

On the other hand, Ms. Lynch doesn’t appear to be the grandstander that many other U.S. Attorneys are, and perhaps she will show a political independent streak. She is certainly a better choice than Labor Secretary Tom Perez, who would have warranted a confirmation fight. Republicans have enough high priorities in the next Congress that the bar should be high for challenging non-judicial nominees who seem to be qualified and honest.

Of course the leftist Atlantic will distort this to a gay bashing issue and compare it to efforts by Slave states 150 years ago. I wanted to email this to Mark Levin who would tear this argument to shreds in minutes but I don't see a link on his website. I neither get on FB or twitter:

Nullification, Now Coming to the Supreme Court?The Atlantic By David A. Graham

Nullification, Now Coming to the Supreme Court?When the Tea Party wave arrived in 2010, it swept away much of the Republican Party's existing structure, and instituted a more populist approach. But as waves tend to do, it left some even older debris in its wake. "Nullification," the theory that states can invalidate federal laws that they deem unconstitutional, had its heyday in the slavery debate that preceded the Civil War, but it has found new currency since 2010.

Supreme Court Will Decide Gay Marriage This Term CBS Dallas Fort Worth (RSS) Supreme Court sets stage for historic gay rights ruling Associated Press Supreme Court to consider same-sex marriage CBS News US Supreme Court turns away an appeal of same-sex marriage ban AFP Idaho gay marriage fight appealed to Supreme Court Associated Press The theory has never been validated by a federal court, yet some Republican officeholders have suggested states can nullify laws, including Senator Joni Ernst, who gave the GOP rebuttal to the State of the Union. Missouri legislators passed a bill that would have nullified all federal gun laws and prohibited their enforcement. My colleague James Fallows has described efforts by Republicans in Congress to block duly passed laws—refusing to confirm any director of an agency established by an act of Congress, for example—as a new form of nullification.

Now Mike Huckabee seems to be opening up a new front. The Supreme Court last week agreed to hear a case on whether same-sex-marriage bans are unconstitutional. There's no such thing as a sure bet with the Court, but many watchers on both sides of the issue believe the justices will strike down the bans. Some conservatives seem resigned to the fact that the fight is lost; not Huckabee. Here's what he told radio host Hugh Hewitt Tuesday:

One thing I am angry about, though, Hugh, is this notion of judicial supremacy, where if the courts make a decision, I hear governors and even some aspirants to the presidency say well, that’s settled, and it’s the law of the land. No, it isn’t the law of the land. Constitutionally, the courts cannot make a law. They can interpret one. And then the legislature has to create enabling legislation, and the executive has to sign it, and has to enforce it.

Hewitt seemed a little taken aback: Was Huckabee counseling that county clerks simply ignore Supreme Court rulings and refuse to issue marriage licenses to same-sex couples?

Well, the point is states would be in a position that their legislatures would have to go into session. They would have to create legislation that the governor would sign. If they don’t, then there is not same sex marriage in that state. Now if the federal courts say well, you’re going to have to do it, well, then you have a confrontation. At that point, somebody has to decide is the Court right? If it is, then the legislation will be passed. It’s not unlike we’ve seen other legislation.

That's not an entirely novel idea, as Huckabee, a former governor of Arkansas, should know. In 1957, the state believed it could block the Little Rock School Board from adhering to the Supreme Court's ruling in Brown v. Board of Education.* President Eisenhower disagreed, and dispatched troops to show Governor Orval Faubus how wrong he was. Faubus is not an historical model most contemporary politicians would be willing to follow.

Huckabee's legal analysis seems off, too. What happens when a court rules against such a marriage law is that a specific provision—a clause that defines marriage as involving one man and one woman, for instance—is defined as unconstitutional. That doesn't invalidate the entirety of a state's marriage laws, so the rest stand and there's no need for the legislature or governor to act. By analogy, Loving v. Virginia didn't invalidate all of the Commonwealth of Virginia's marriage laws; it just meant interracial unions were no longer prohibited. Presumably, a state could avoid having to sanction gay marriages by simply eliminating civil marriage altogether. That's been suggested in Oklahoma, for example, but no state has actually done so. (Thanks to my colleague Garrett Epps for discussing these questions with me.)

Loving v. Virginia didn't invalidate all of the Commonwealth of Virginia's marriage laws; it just meant interracial unions were no longer prohibited. What unites all of these threads—nullifying Supreme Court rulings, Congress self-nullifying, and Nullification Classic, at the state level—is a remarkable backlash against the federal government, not on specific issues but per se: as a unified body with national governing authority. As Americans become more geographically sorted along ideological lines, states seem to be drifting apart in many ways. More states have single-party control than any time in recent memory, and that means increasingly divergent state laws. Red states pass more stringent abortion regulations, blue states pass more stringent gun controls, greener states pass less stringent marijuana laws. That makes (at least a bare majority of) the people in those states happy.

The idea that state governments or for that matter the Congress can go their own way by ignoring duly passed laws and duly decided Court rulings seems like a less salubrious development. In fact, it's one of those slippery slopes so feared by gay-marriage opponents. Huckabee wants conservative states that oppose gay marriage to be able to keep opposing it, but he isn't suggesting dissolving the federal government wholesale. He still wants states to generally be bound by national laws.

But if some states can pick and choose laws, others will surely do the same—and in such a polarized national landscape, they'll start picking and choosing increasingly contradictory options. Liberals states will start refusing to enforce laws they don't like. (This happened with the Fugitive Slave Act, in fact; Wisconsin ruled the law unconstitutional; southerners who otherwise championed states' rights objected; and the Supreme Court overruled it.) It's a ticket to dissolving the union, all in the name of preventing same-sex unions.

We all know that the question of whether States can leave the Union was settled by force of arms, but what I did NOT know until I read this is that Lincoln's position is Constitutionally compelled by the following--- follow the logic closely-- I see no answer to this as possible:=====================================================

And there is the history lesson for those who like to rely on prior documents, in this case the DOI in discussing the Constitution. If one relies on another prior document, the Articles of Confederation, one sees these words which gave the Union its "authority" to prevent secession:

Quote:"And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State."End Quote

Of course there will be some who will claim "well the Constitution replaced the Articles of Confederation." The preamble to the Constitution dispels that myth:

Quote:

"We the people of the United States, in order to form a more perfect union,...."

In order to form a more perfect union, implies the existence already of aunion that is being enhanced (not replaced) by this Constitution.

=================================

In a closely related vein an internet friend writes:

"If I might add something to it Madison laid out the exact reasons for the constitutional convention in his notes of 1840. These were the notes he wrote during the CC. In section 59 He specified that if adopted the Federal Constitution was the supreme law of the land. Therefore succession was to be considered revolution."

MADISON WROTE"Since the Constitu- Amend- tion was adopted in its entirety by the people of each of the several States, it was not only the supreme law, but it could only be amended, and the relations between the Union and the States changed, by the legislatures or conventions of three-fourths of the States, in accordance with the Fifth Article. There is here, therefore, no room for withdrawal, for the people of a State could only change its relations to the Union by the vote of three-fourths of the States. It Seces- is difficult to see how the people of a State could withdraw from their own Constitution, which they themselves and in conjunction with the other States had made their supreme law. Secession could only be revolution. "http://archive.org/.../jamesmadisonsnot00scot_djvu.txt